Monday, April 20, 2015

What is Neutrality With Respect to Religion?

by Michael Dorf
With Religious Freedom Restoration Acts (RFRAs) much in the news lately, it may be worth recalling the piece of religious freedom that did not need to be restored, even after the SCOTUS weakened protection for religious freedom in the 1990 case of Employment Division v. Smith. There the Court held that a law that does not single out religion does not implicate the Free Exercise of Religion, even if, in particular cases, it substantially burdens the exercise of religion by particular people--as Oregon's general ban on peyote burdened the exercise of religion by Native Americans wishing to participate in the peyote ritual.

But even after Smith and before the enactment of the federal RFRA, the Supreme Court made clear that a law that actually targets a religious practice because it is a religious practice does implicate--and presumptively violates--the free exercise of religion. The case so holding was Church of Lukumi v. Hialeah, which unanimously invalidated a local ordinance forbidding ritual animal sacrifice even though, as Justice Blackmun emphasized in a concurrence joined by Justice O'Connor, a general law forbidding cruelty to animals might well be sufficiently compelling to overcome any religious objections to complying with it under the pre-Smith law, which Justices Blackmun and O'Connor would have continued to apply.

Whereas RFRA enjoyed widespread support when enacted, it has now become controversial, as religious conservatives increasingly turn to RFRAs to resist liberal legislation (such as mandating contraceptive health insurance and antidiscrimination laws). However, Lukumi apparently remains uncontroversial. Politicians, judges, and scholars across the ideological spectrum seem to agree that laws may not single out religion or any particular religion for adverse treatment.

But a recent controversy from India may indicate that the consensus that Lukumi is correct trades on an ambiguity concerning what it means to say that a law serves a religion-neutral purpose. Writing in yesterday's NY Times, Manil Suri explores the motivation behind the Indian State of Maharashtra's expansion of its ban on slaughter of cows to cover bulls and oxen, and the adoption of a law banning the sale of beef.

Suri portrays the new law as motivated by something like either Hindu supremacy or anti-Muslim animus. Either way, it seems of a piece with the broader ethno-religio-nationalist policies of Indian Prime Minister Narendra Modi.

But note that, unlike the Hialeah ordinance, which singled out ritual animal sacrifice for prohibition while permitting more or less the same practices when conducted for other purposes, such as to obtain animal-based food and clothing, the Maharashtra law is general. It forbids the sale of beef and the slaughtering of cows, bulls, and oxen, regardless of the religious or nonreligious purpose for which such sale or slaughter occurs. In that sense, the law is neutral.

Except that in another sense it isn’t. The motivation is pretty clearly religious. The law cannot reasonably be understood as advancing a religion-neutral purpose, such as preventing cruelty to animals. It applies only to cows, bulls, and oxen, which are holy to (many) Hindus. Even then, it does not target cruelty or even the killing of these animals. Traditional Hinduism permits the drinking of cows’ milk; indeed, it even celebrates drinking cows’ milk. (The god Krishna was fostered by cowherds and later cavorted with milk maids). Yet to produce milk, cows must be repeatedly impregnated, their calves taken away and slaughtered, and they themselves slaughtered when their production drops.

To be sure, some Hindus, Hare Krishnas, Jains, and others attempt to consume only “ahimsa milk,” taken from cows who are permitted to retire rather than be slaughtered, and whose male offspring are put to work rather than turned into veal. But this practice is extraordinarily costly and has a greater adverse impact on the environment than even the very substantial adverse impact of conventional dairy farming. Moreover, India—the world’s leading producer of dairy—obtains the vast majority of its dairy products using conventional (i.e., cruel) means. The Maharashtra law does not forbid the consumption of all non-ahimsa dairy products.

But suppose that it did or, better yet, suppose that a state of India forbade the purchase and consumption of all or nearly all animal products. Would that law serve a secular purpose? It is easy to imagine how such a law could have a secular purpose in a U.S. state, a majority of whose citizens had come to see veganism as a moral obligation independent of any religious belief. But in a majority-Hindu state of India, things would not be so straightforward. Perhaps the (hypothetical) legal prohibition on the consumption of animal products would be traceable to the belief that all sentient beings are or could be the vessels for the reincarnated souls of human beings. If the voters’ concern for animal wellbeing were the product of this prophylactic concern for the souls of humans rather than for the wellbeing of the animals for their own sake, would that render the motivation impermissibly religious under Lukumi or the Establishment Clause? Obviously, Smith, Lukumi, and RFRA do not apply in India, but the Maharashtra law nonetheless sheds light on how we might want to think about such questions.

My inclination would be to distinguish between, on the one hand, laws that facially draw distinctions based on religion (as in Lukumi itself) or are motivated by animus against members (or non-members) of some religious group and, on the other hand, what we might call second-order religious motivation—i.e., circumstances in which people have religious views that motivate them to hold moral views that they in turn translate into law, where the moral views could nonetheless be supported on secular grounds alone.

Even if the only reason that a majority of some political community supports a law banning murder is that their holy book proscribes murder, the law banning murder should be regarded as religion-neutral. Likewise, I would want to say that in the hypothetical world in which a majority-Hindu political community supports legally mandated veganism on ultimately religious grounds (relating to reincarnation), they should be entitled to impose that law on religious dissenters, so long as the secular reasons for such a law are sufficiently compelling, as I believe they are but as most people apparently do not (yet) believe, to override the dissenters' objections.

Finally, it is worth emphasizing that even in my highly stylized hypothetical case, and especially in the real case, the problem is in some sense intractable, because of the tendency of religious views to overlap with moral views. The minority of Muslim, low-caste Hindu, and other citizens of Maharashtra who want to eat, buy, or sell beef or to slaughter cows, bulls, or oxen will not see any moral imperative behind the law that forbids them from doing so, and would not see the imperative in my hypothetical. They will see the law as simply imposing the majority’s religious beliefs on them (and in the actual case they will almost certainly be right about that). To bring the point home to the U.S., whether under Lukumi or RFRA, it will not be the people seeking to practice their religion in the face of a legal prohibition who judge whether the prohibition is justified. Whether there is a "compelling" interest sufficient to override the religious objection will almost invariably be determined by judges who hold views that align with the religiously influenced moral views of the majority.

12 comments:

A core question has to be a sort of objective test regarding if there is a neutral public purpose to the law.

There are going to be various times when some majority of legislators are going to be largely motivated by religious faith to do certain public actions. For simplicity, e.g., consider a small town with body with five votes. Three might be motivated by religious faith to support environmental policies.

That's fine as long as it is done in advancement of secular public interests. But, people are going to be motivated in some part by religious faith here. Sometimes, this will result in some legislative action that is secular but was chosen over another because of the religious faith of the legislators.

The need to change the actual here to formulate the hypo is telling -- the actual law here looks to be sectarian under our rules. Other examples can be provided -- e.g., the Hyde Amendment selectively favors the moral concerns of those who don't want to pay for abortions. Those who think paying for abortions in certain cases is a moral obligation are ignored because they don't have the votes.

Wonder whether an Indian-like law would be struck down by the current SCOTUS on grounds of establishment. In Town of Greece, the majority appeared pretty willing to say there was no establishment unless there was coercion - the forced practice of a religion by a non-adherent. But if a government banned the sale of beef, SCOTUS would likely find that no one is forced to practice Hinduism - they're just forced to forgo one option that that they had open to them and forgoing beef-eating does not make one a Hindu.

Of course, this reasoning seems to render the establishment clause meaningless - a law sufficient to count as an establishment would apparently violate the free exercise clause as well - unless one thinks that the refusal to practice a religion is not part of the free exercise of another religion (or lack thereof).

1. It is only recently in history that government separation from sectarian beliefs underpinning the legal structure of a society has taken place. If one accepts a round figure of say 12,000 years of civilization, then only the last 300 to 500 of those 12,000 years do we not have government so entwined with religion that civic operations reflect the religious beliefs of the majority.

2. That such entwinement of government and religion produces persecution and denial of religious freedom of minority religions has in those years been a matter of accepted fact (not so much by the minority however). One of the most powerful arguments that the majority has made is that they are doing it for the benefit of the minority, saving their souls, ensuring that they lead a righteous life, getting them into heaven etc. This argument carries over to modern life, see fundamentalist Jews, Christians and Muslims whose commonality of beliefs (bigotry and hatred?) is far greater than that which separates them.

3. As a result, all societies have remnants of religion as the basis for non-sectarian government. For example, laws prohibiting or restricting the sale of alcohol, laws governing commerce on Sundays, laws allowing quasi-religious services at school functions, government sessions and the like all have the basis in religion, not in civic virtue.

4. Zealots in the U. S. have co-opted laws like RFRA, using and perverting them to impose their religious beliefs in the name of ‘religious freedom’. If my religion requires me to convert you, forcibly if necessary, to my beliefs then preventing me from doing so violates my religious freedom, at least according to the beliefs of zealotry.

So what is being witnessed in India for example is an attempt by the Hindu majority to impose their will on the Muslim minority. This leaves us with the interesting dilemma expressed her by Mr. Dorf, where a person’s strong views towards veganism might conflict with their strong views that argue that religion and government should be separate.

To paraphrase Lincoln, ultimately the United States will be either all religious or all secular or it will cease to exist in its current form. The Mike Huckabee’s, the Ted Cruz’s, the base of the Republican party would like it to be all religious. Should these individuals and their ilk gain control of government it is difficult to see how the United States can continue as a single country.

The op-ed cited is interesting in part because it cites a suggested origin of the Hindu taboo. Some experts suggest there is actually a secular rationale (the same is probably true for various kosher rules) though a total ban is counterproductive on that level.

If there actually is a secular rationale, the lack of neatness would generally be allowed (rational basis review) unless it seen as burdensome on a certain religious faith in the uneven way struck down in Church of Lukumi v. Hialeah.

As one comment notes, a general Establishment Clause concern independent of that is somewhat unlikely under today's precedents. I'm unsure of a law that was not blatantly religious (e.g., supporting creation science) or favoring religion (e.g., local regulation favoring church property) that was struck down akin to the hypo.

First of all, I must appreciate you for a wonderful thought sharing here. It’s a great topic and discussions are all over with regard to current day issues from across the globe. You have discussed about the recent Indian controversy over Beef ban and it’s true that there was quite a different knock made by the ruling government. It’s quite clear that ban on killing cow is out of pure religious perspective of ruling party, as Hindus consider cow as a scared animal. But the problem is that some politicians trying to make that such a ban is to lift milk production or something like economic development. Hence, there is a question why to add bulls and oxen too to the banned animal list? The reply from the so called political pundits from the party is funny that they pointed out the cruelty of animal killing. If such is the case, then only cows, bulls and axes are the only animals in this Earth?

I hate it when the rulers make such a decision and try to cover the facts with their clown version of thoughts. Personally I do not like killing cows for some reasons, but it’s not good for the leaders to deny the rights of others on what they eat or drink. This political drama is everywhere in this planet Earth on every decision the rulers take, but the only possible option is that the community should understand the game. I’m working for an essay writing service here . I enjoyed it when one of my articles on this topic got good response from the viewers who also shared their respective views and similar thoughts on the subject.

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